Haight v. Holcomb , 16 How. Pr. 173 ( 1858 )

By the Court.^*—Gould, J.

—I am fully of opinion, that the order of the special term is right, in so far as it gives the attorney a lien (beyond the power of his client to release), on the judgment he has recovered; the Code not having done away with the right which existed prior to its enactment.

There seems to me, however, a much more serious question involved, where the extent or amount of the lien is to be ascertained. At the special term, it was held, that as the judgment debtor had (before settling with the plaintiff) notice that the attorney of the plaintiff claimed a lien on the judgment to the amount of $250, for his services in obtaining the judgment, he, the debtor, was bound thereby to that amount, and could not so settle with the plaintiff, as to protect himself from paying that sum on the execution, for the benefit of the attorney. At the same time the entire amount of costs contained in the judgment, including $40 of extra allowance, was $120.28.

The plaintiff in the judgment on the other hand, claimed that as between him and his attorney, there' was nothing due. And to arrive at a decision at the special term, it was necessary to order an interlocutory reference, to ascertain what, as between the plaintiff and his attorney, was due for services in this cause. And it appears that on the reference, the plaintiff refused to appear, denying the authority of the court to refer, without his consent, a controversy between him and his attorney, for the trial of which he had a right to a jury. I am unable to see why this position of the plaintiff is not sound; as the defendant (and not the plaintiff) made the motion to set aside the execution, because the judgment was settled. And if this position be sound, it seems to me to lead us directly to the correct solution of the whole difficulty.

The allowance made by the Code is a substitute for, and in strict analogy to the costs of the old fee bill, and the amount of such allowance is patent on the judgment, as an item separate from Oao plaintiff's damages. To this limit, the attorney has, on the judgment roll itself, prima facie claim, of which all parties have legal notice; and in any settlement with the party, the defendant settles those costs at Ms peril. But an agreement as to amount of compensation, made between attorney and client' under the Code, is utterly indefinite, as well as confined to their own knowledge, and may as well extend to three quarters of the whole judgment, as to any other amount. And should there be a dispute between the attorney and his client, as to what the agreement, and to what amount it extended, I know of no short remedy to which an attorney is entitled, by which to avoid settling that dispute in. the usual way, and by the usual tribunals. While, since the tenor and extent of this agreement can never appear on the record, no party can ever be safe (in settling a judgment) against a claim of an attorney, however exorbitant or unlikely it may appear, but he must abide the due course of an execution, which will necessarily be collected long before the plaintiff and his attorney can have their differences decided.

It therefore seems to me, that while the attorney’s lien should be maintained under as well as before the Code, it should now, as then, be restricted to what appears as costs on the roll; and I would so modify the order of the special term.

* Present, Weight, Gould, and Hogeboom, JJ.